Normandeau v. Hanson Equipment

2009 UT 44
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Emily Normandeau, individually No. 20071006
and as guardian for Alex Thayne,
Jacob Thayn, and Hannah Normandeau,
minors; and Lori Normandeau, as
guardian for Daniel Normandeau
and Melissa Normandeau, minors,
on behalf of and for the benefit
of the heirs of Dennis Normandeau,
deceased.
Plaintiffs and Respondents,
v.
Hanson Equipment, Inc., a corporation;
International Truck and Engine
Corporation, a corporation; Bendix
Commercial Vehicle Systems, LLC, a
limited liability company; General
Motors Corporation, a corporation,
by and through its Allison
Transmission Division; Budget Rent
A Car System, Inc., a corporation
fka Budget/Ryder TRS; Summit House
Fine Furniture, L.L.C., a limited
liability company; Dana Corporation, F I L E D
a corporation; and John Does 1-10,
Defendants and Petitioner. July 21, 2009
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Third District, Salt Lake
The Honorable John Paul Kennedy
No. 020914093
Attorneys: Colin P. King, Paul M. Simmons, Tawni J. Anderson,
Salt Lake City, for respondents
Melinda A. Morgan, Zachary E. Peterson, Salt Lake
City, for petitioner
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On Certiorari to the Utah Court of Appeals

1 Indeed, our precedent is clear that the question of duty
(continued...)
No. 20071006 2
PARRISH, Justice:
INTRODUCTION
¶1 We granted certiorari on the question of whether the
district court’s denial of a pretrial motion for summary judgment
is appealable after the trial has concluded and the jury has
rendered its verdict and, if so, whether the party appealing the
denial of the motion for summary judgement is required to reraise
the basis for the motion during trial in order to preserve it for
appeal. Regardless of whether the issue on which summary
judgment was denied was reraised during trial, we hold that a
party may appeal a denial of a motion for summary judgment so
long as the basis for the motion was purely legal. We
accordingly reverse the decision of the court of appeals.
FACTS & PROCEDURAL HISTORY
¶2 Mr. Normandeau, a tow truck driver, was killed as he
prepared a Ryder rental truck for towing. A faulty repair to the
truck’s hydraulic hose caused torque to build up in the
driveline. As a result, when Mr. Normandeau disconnected the
driveline in preparation for towing, a portion of the rear
differential broke loose and struck his head, killing him
instantly. His heirs (the “Normandeaus”) sued Hanson Equipment
(“Hanson”), the company that had performed repairs to the
hydraulic hose shortly before the accident.
¶3 Prior to trial, Hanson moved for summary judgment,
claiming that it owed no duty to Mr. Normandeau as a matter of
law and that its prior repair of the truck was not the proximate
cause of Mr. Normandeau’s death. At the summary judgment
hearing, the Normandeaus argued that the question of duty could
be decided as a matter of law, and neither Hanson nor the judge
disputed this assertion. Hanson claimed that it was not
foreseeable that the built up tension in the driveline would kill
a potential tow truck driver. Because there was a question of
fact about whether the faulty repair was a foreseeable cause of
Mr. Normandeau’s death, the district court denied summary
judgment. Although the district court was not clear during the
summary judgment hearing or in its subsequent written order about
whether the foreseeability question went to both duty and
proximate cause or just proximate cause, the parties apparently
understood that any disputed factual issues went to the question
of causation rather than duty.1 At trial, the parties disputed

(...continued)
is a purely legal issue. See discussion infra Part I.B.
3 No. 20071006
whether Hanson’s repair to the truck was a proximate cause of Mr.
Normandeau’s injuries but did not raise the issue of whether
Hanson owed Mr. Normandeau a duty. The jury found for the
Normandeaus and assigned Hanson all of the liability.
¶4 Hanson appealed the district court’s denial of their
pretrial summary judgment motion on the issue of duty. The court
of appeals held that it could not review the ruling because
Hanson did not litigate the issue at trial and failed to make a
rule 50(b) motion for directed verdict on the issue. Normandeau
v. Hanson Equip. Inc., 2007 UT App 382, ¶¶ 13-14, 174 P.3d 1.
The court of appeals explained that it could only review denials
of pretrial summary judgment motions in cases where the litigant
was foreclosed from raising at trial the basis for the motion.
Id. (citing Wayment v. Howard, 2006 UT 56, ¶ 20, 144 P.3d 1147).
We have jurisdiction to review the court of appeal’s decision
pursuant to Utah Code section 78A-3-102(3)(a) (2008).
ISSUES & STANDARD OF REVIEW
¶5 We granted certiorari to address two questions:
(1) whether the court of appeals erred in its construction and
application of the rules governing appellate consideration of
challenges to denials of summary judgment on direct appeal
following entry of final judgment and (2) whether the court of
appeals erred in its assessment of the effect of Hanson’s failure
to explicitly raise the issue of duty of care at trial after
denial of its motion for summary judgment on that issue.
¶6 “‘On certiorari, we review the court of appeals’
decision for correctness, focusing on whether that court
correctly reviewed the trial court’s decision under the
appropriate standard of review.’” Pratt v. Nelson, 2007 UT 41,
¶ 12, 164 P.3d 366 (quoting Hansen v. Eyre, 2005 UT 29, ¶ 8, 116
P.3d 290).
ANALYSIS
I. THE COURT OF APPEALS ERRED IN HOLDING THAT IT COULD NOT
REVIEW THE DISTRICT COURT’S DENIAL OF HANSON’S PRETRIAL SUMMARY
JUDGMENT MOTION
¶7 Appellate courts may review the denial of a pretrial
summary judgment motion if the motion was decided on purely legal
grounds. We previously have held that “[i]n appealing a summary

No. 20071006 4
judgment ruling, only facts and legal theories that were
foreclosed from being addressed at trial may be heard on appeal.”
Wayment v. Howard, 2006 UT 56, ¶ 20, 144 P.3d 1147; see also
Brown v. Jorgensen, 2006 UT App 168, ¶¶ 19-22, 136 P.3d 1252
(reviewing the pretrial denial of a summary judgment motion based
on the court’s decision not to strike a supporting affidavit, a
legal issue that would be foreclosed from litigation at trial).
However, our case law has been less than clear in defining when
appellate review of denials of summary judgment motions is
precluded. For example, we have sometimes reviewed the denial of
a summary judgment motion when the issue raised was not
subsequently litigated at trial, even though parties were not
explicitly foreclosed from reraising the issue. See Prince,
Yeates & Geldzahler v. Young, 2004 UT 26, ¶ 9, 94 P.3d 179
(considering after trial whether the district court erred in
denying plaintiff’s summary judgment motion on the basis that no
contract existed as a matter of law). But we have also held that
if a party has “the opportunity to fully litigate the issues
raised in the summary judgment motions,” we will not review the
court’s denial of those motions. Wayment, 2006 UT 56, ¶ 19.
¶8 Given the lack of clarity in our prior case law, we
first examine what standard the court of appeals should have
applied in determining whether to review the denial of Hanson’s
summary judgment motion. We then apply the standard to the issue
of duty in this case.
A. Appellate Courts May Review Pretrial Denials of Summary
Judgment Motions After Final Judgment Has Issued If the District
Court Denied Summary Judgment on Purely Legal Grounds
¶9 On appeal, we will review a district court’s denial of
a summary judgment motion when the district court makes a legal
ruling based on undisputed facts that do not materially change at
trial. See Estate Landscape & Snow Removal Specialists, Inc. v.
Mountain States Tel. & Tel. Co., 844 P.2d 322, 326 (Utah 1992).
The district court must deny a motion for summary judgment if it
finds that there is a genuine issue of material fact that bears
on its legal determination or if it finds, as a matter of law
based on the undisputed facts, that the moving party is not
entitled to a legal ruling in its favor. See Utah R. Civ. P.
56(c). Because district courts are not required to specify the
grounds on which they deny a motion for summary judgment, it may
be difficult in some cases to ascertain whether the court denied
a summary judgement motion based on the existence of a disputed
material fact or as a result of a purely legal ruling.
¶10 This potential difficulty leads the Normandeaus to
argue that this court should abandon our prior rulings allowing

5 No. 20071006
us to review pretrial denials of summary judgment in favor of a
bright line rule precluding all appellate review of such motions
unless they are renewed at the conclusion of trial.
Specifically, they argue that by allowing losing parties to
appeal pretrial denials of summary judgment motions, appellate
courts allow the summary judgment motion to become “a bomb
planted within the litigation at its early stages and exploded on
appeal.” Holley v. Northrop Worldwide Aircraft Servs., Inc., 835
F.2d 1375, 1377 (11th Cir. 1988); see also Feiger, Collison &
Killmer v. Jones, 926 P.2d 1244, 1249-50 (Colo. 1996).
¶11 Although some jurisdictions have chosen to implement
this bright line rule, others recognize that “[a] critical
distinction exists between ‘summary judgment motions raising the
sufficiency of the evidence to create a fact question for the
jury and those raising a question of law that the court must
decide.’” Wilson v. Union Pac. R.R. Co., 56 F.3d 1226, 1229
(10th Cir. 1995) (quoting Ruyle v. Cont. Oil Co., 44 F.3d 837,
842 (10th Cir. 1994)). For example, in order to prevent parties
from challenging summary judgment motions on appeal that were
denied due to disputed material facts rather than on purely legal
grounds, the Eleventh Circuit will not review the denial of a
pretrial summary judgment motion if “(a) by trial the evidence
produced by the opposing party was sufficient to be presented to
the jury; or (b) by trial the evidence had been supplemented or
changed in some manner favorable to the party who opposed summary
judgment.” Holley, 835 F.2d at 1377-78. This rule comports with
our past appellate review of denied summary judgment motions.
¶12 In Estate Landscape, we reviewed a pretrial denial of a
summary judgment motion when the pretrial judge made a legal
ruling regarding accord and satisfaction that the trial judge
declined to reconsider. 844 P.2d at 325. In that case, it would
have been futile for the losing party to litigate accord and
satisfaction at trial due to the earlier court ruling; no factual
issue at trial would have affected the legal determination.
Thus, we held that the denial of the earlier summary judgment
motion, which had not thereafter been litigated at trial, was
appealable. Id. at 325-26.
¶13 Similarly, in Prince, Yeates & Geldzahler we reversed a
jury verdict based on an improper denial of summary judgment even
though the legal issue decided by the court denying the motion
was not specifically foreclosed from being litigated at trial.
2004 UT 26, ¶¶ 12-14. In that case, Prince Yeates sought summary
judgment prior to the trial, arguing that under the undisputed
material facts no contract existed between the parties as a
matter of law. Id. ¶¶ 7-9. The district court denied the
motion. Id. When the case went to the jury, the court

No. 20071006 6
instructed them that the plaintiffs’ oral agreement with Prince
Yeates was a valid express contract. Prince Yeates did not
object to this instruction. Brief of Appellee and Cross-
Appellant at 37, Prince, Yeates & Geldzaher v. Young, 2004 UT 26,
94 P.3d 179 (No. 20020347). Although nothing in the denial of
summary judgment suggested that Prince Yeats was foreclosed from
litigating the existence of the contract at trial, we reviewed
the pretrial legal ruling and reversed the jury verdict. Based
on the undisputed facts presented in the summary judgment motion,
which remained materially unchanged at trial, we held that the
district court erred in determining that the vague oral agreement
constituted an enforceable contract. Prince, Yeates &
Geldzahler, 2004 UT 26, ¶ 14.
¶14 Purely legal issues are not decided by a trier of fact.
Therefore, while we have stated that we review “only facts and
legal theories that were foreclosed from being addressed at
trial,” Wayment, 2006 UT 56, ¶ 20, we do not require parties to
reargue at trial legal issues that a trier of fact cannot decide.
In both Estate Landscaping and Prince Yeates, the parties would
not have benefitted from the opportunity to litigate the disputed
legal issue at trial since both the existence of an accord and
satisfaction and the existence of a contract in these cases were
legal issues decided by the court. While the Prince Yeates
litigants were not explicitly prevented from relitigating the
existence of a contract, there would have been no benefit to
doing so. Moreover, to allow review of pretrial denials of
summary judgment only when a party is explicitly forbidden from
reraising the legal issue at trial would preclude appellate
consideration of nearly all pretrial denials of summary judgment
motions because “reconsideration of an issue before a final
judgment is within the sound discretion of the district court.”
IHC Health Servs. Inc. v. D & K Mgmt. Inc., 2008 UT 73, ¶ 27, 196
P.3d 588.
¶15 We therefore hold that when a court denies a motion for
summary judgment on a purely legal basis, that is where the court
denies the motion based on the undisputed facts, rather than
because of the existence of a disputed material fact, the party
denied summary judgment may challenge that denial on appeal. Any
time “that reasonable minds could not differ as to the conclusion
to draw from the evidence or that the evidence adduced was simply
insufficient to sustain the legal claim, then the trial court
should rule on the issue as a matter of law.” AMS Salt Indus.
Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 320 (Utah 1997).
On the other hand, when disputed facts bear on the decision or
when new material facts emerge at trial that change the nature of
the legal determination, parties then have an obligation to

7 No. 20071006
reraise the issue at trial in order to preserve it for appeal.
See Holley, 835 F.2d at 1377.
¶16 Because we hold that we may review a district court’s
denial of a summary judgment motion if the denial was based on a
purely legal issue, we now analyze whether the district court’s
denial of Hanson’s summary judgment motion is reviewable.
B. The District Court Made a Legal Ruling Based on Undisputed
Facts When It Denied Hanson’s Summary Judgment Motion on the
Issue of Whether Hanson Owed Mr. Normandeau a Duty of Care
¶17 Because duty is a purely legal issue for the court to
decide, the court of appeals erred when it determined that it
could not review the pretrial denial of Hanson’s summary judgment
motion. The court of appeals held that it could not review the
denial because duty of care is “heavily fact sensitive and is
intertwined with the issue of foreseeability.” Normandeau v.
Hanson Equip., 2007 UT App 382, ¶ 14, 174 P.3d 1. The court of
appeals reasoned that the issue of foreseeability bears on both
duty and proximate cause, and thus the district court could not
have ruled on duty as a matter of law. Id.
¶18 In contrast to the court of appeals’ assertion that
duty was submitted to the jury in the form of questions
surrounding foreseeability, appellate courts have consistently
held that “[t]he determination of whether a legal duty exists
falls to the court.” Yazd v. Woodside Homes Corp., 2006 UT 47,
¶ 14, 143 P.3d 283; see also Rose v. Provo City, 2003 UT App 77,
¶ 8, 67 P.3d 1017 (“[W]hether a duty of care is owed is ‘entirely
a question of law to be determined by the court.’” (quoting
Lamarr v. Utah Dep’t of Transp., 828 P.2d 535, 538 (Utah Ct. App.
1992))); AMS Salt Indus., 942 P.2d at 319 (“[T]he question of
whether a duty exists is a question of law.” (internal quotation
marks omitted)). Moreover, during the summary judgment hearing,
the Normandeaus agreed that duty would be “decided by the Court,
as a matter of law” rather than by the jury. Consistent with the
parties’ understanding that a denial of summary judgment on the
issue of duty was determined as a matter of law, the parties did
not argue about duty at trial. Still, the Normandeaus argue that
the question of whether Hanson owed a duty to the Normandeaus was
dependent on whether the negligent repair caused Mr. Normandeau’s
death or whether he caused his own death by not checking for
built up torque. Although this factual question does implicate
the foreseeability of Mr. Normandeau’s death, the specific
mechanism of death is more properly an issue of proximate cause
than one of duty.

2 In Rees, we stated that when there is a dispute about the
(continued...)
No. 20071006 8
¶19 “‘A duty, in negligence cases, may be defined as an
obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another.’”
AMS Salt Indus., 942 P.2d at 320-21 (quoting W. Page Keeton et
al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.
1984)). A court determines whether a duty exists by analyzing
the legal relationship between the parties, the foreseeability of
injury, the likelihood of injury, public policy as to which party
can best bear the loss occasioned by the injury, and other
general policy considerations. Id. at 321. “Legal duty, then,
is the product of policy judgments applied to relationships.”
Yazd, 2006 UT 47, ¶ 17; see also Slisze v. Stanley-Bostitch, 1999
UT 20, ¶¶ 9-10, 979 P.2d 317 (finding that a manufacturer had no
duty as a matter of law to inform a consumer that a safer
alternative to its product existed); Ferree v. State, 784 P.2d
149, 151-52 (Utah 1989) (finding that corrections officers owe no
duty of care to the general public because it would be contrary
to the public policy of promoting rehabilitative programs).
¶20 Foreseeability as a factor in determining duty does not
relate to the specifics of the alleged tortious conduct but
rather to the general relationship between the alleged tortfeasor
and the victim. “Whether a harm was foreseeable in the context
of determining duty depends on the general foreseeability of such
harm, not whether the specific mechanism of the harm could be
foreseen.” Lee v. Farmer’s Rural Elec. Coop. Corp., 245 S.W.3d
209, 212 (Ky. Ct. App. 2007); see also Steffensen v. Smith’s
Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (“What is necessary
to meet the test of negligence . . . is that [the harm] be
reasonably foreseeable, not that the particular accident would
occur, but only that there is a likelihood of an occurrence of
the same general nature.” (internal quotation marks omitted)).
¶21 At times, factual issues may bear on the issue of
foreseeability as it relates to duty, but this is not such a
case. The Normandeaus argue that the district court denied
Hanson’s motion for summary judgment on the issue of duty based
on the extensive disputed material facts, relying on several Utah
cases that have allowed the issue of foreseeability as it relates
to duty to proceed to the jury. See Cruz v. Middlekauff Lincoln-
Mercury, Inc., 909 P.2d 1252, 1255-56 (Utah 1996); Steffensen,
862 P.2d at 1346 (finding that jury instruction regarding
foreseeability related primarily to proximate cause, though
acknowledging that it could bear on negligence as well); Rees v.
Albertson’s, Inc. 587 P.2d 130, 133 (Utah 1978).2 For instance,

(...continued)
foreseeability of an injury occurring, “the questions relating to
negligence and proximate cause are generally for the fact-trier,
court or jury, to determine.” Rees, 587 P.2d at 133. But the
foreseeability discussed in Rees--whether Albertson’s could have
reasonably foreseen that breaching its duty not to sell beer to
minors--related to whether Albertson’s was the proximate cause of
the resulting accident not, as contested by the Normandeaus,
whether Albertson’s had a duty not to sell the beer.
9 No. 20071006
when parties disputed whether “special circumstances” existed to
find that the owner of a car who left the key in its ignition had
a duty to a couple injured when the car was stolen, the court
allowed the jury to evaluate the facts. Cruz, 909 P.2d at 1255-
56. If there were such “special circumstances,” then the car
owner owed the injured party a duty. Id. at 1256. But in this
case, there is no specific relationship test to be applied to
determine whether Hanson owed Mr. Normandeau a duty. Rather, the
court had the undisputed facts necessary to examine “‘the legal
relationships between the parties . . . [and analyze] the duties
created by these relationships.’” Yazd, 2006 UT 47, ¶ 15
(quoting Loveland v. Orem City Corp., 746 P.2d 763, 766 (Utah
1987)).
¶22 In this case, the parties did not dispute that Hanson
repaired the moving truck’s hydraulic line, that the hydraulic
line failed, that Mr. Normandeau was called to tow the truck, and
that he was then killed when the driveline hit him in the head.
By denying summary judgment, the district court implicitly found
that Hanson had a duty to avoid creating a hazardous situation
for a tow truck driver. The intertwined questions of fact did
not go to the question of whether Hanson owed a duty to Mr.
Normandeau, but rather to whether the repair to the driveline was
the proximate cause of his death. Thus, like the losing parties
in Estate Landscaping and Prince Yeates, Hanson would not have
benefitted from reraising the issue of duty at trial. The jury
could not decide the issue as the court had already made a purely
legal determination based on the undisputed material facts. And
no new evidence was offered at trial to undermine the basis for
the court’s initial determination.
II. ONCE A PARTY HAS PROPERLY PRESERVED A PURELY LEGAL ISSUE
THROUGH A PRETRIAL MOTION FOR SUMMARY JUDGMENT, IT IS NOT
REQUIRED TO RERAISE THAT ISSUE AT TRIAL IN ORDER TO PRESERVE IT
FOR APPELLATE REVIEW
¶23 Because the district court ruled on summary judgment
that Hanson owed Mr. Normandeau a duty of care, Hanson was not

No. 20071006 10
required to reraise the duty issue in a motion for directed
verdict in order to preserve its appellate rights. “[I]n order
to preserve an issue for appeal the issue must be presented to
the trial court in such a way that the trial court has an
opportunity to rule on that issue.” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968 (citing Badger v.
Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998)). An issue is
preserved if it is raised in a timely fashion, clearly
identified, and adequately briefed. Id. “[O]nce trial counsel
has raised an issue before the trial court, and the trial court
has considered the issue, the issue is preserved for appeal.”
Id. We impose no specific requirement that “a party . . . file a
post-judgment motion before the trial court as a prerequisite to
filing an appeal.” Sittner v. Schriever, 2000 UT 45, ¶ 16, 2
P.3d 442 (reviewing grant of partial summary judgment even though
it was not raised in a postjudgment motion).
¶24 The Normandeaus argue that we should require parties to
reraise legal issues decided on summary judgment to give the
court a chance to reconsider them in light of the facts presented
and decided at trial. It is true that “the interlocutory nature
of a partial summary judgment leaves [determinations made in such
motions] subject to modification by the trial court up until the
entry of final judgment.” Wayment v. Howard, 2006 UT 56, ¶ 20,
144 P.3d 1147. But raising a legal issue during a summary
judgment motion based on the undisputed facts properly provides
the court with an opportunity to rule on the issue. And once the
district court has an opportunity to consider the legal issue, as
is the case when the motion for summary judgment is denied based
on the undisputed facts that do not materially change at the
subsequent trial, we will not require parties to reraise the same
issue in order to preserve it for appeal. We therefore hold that
by moving for summary judgment on the issue of duty, Hanson
properly preserved that issue for appeal.
CONCLUSION
¶25 The court of appeals erred in determining that it
lacked jurisdiction to consider Hanson’s appeal of the district
court’s denial of its summary judgment motion on the issue of
duty. Hanson was not required to reraise the duty issue at the
close of trial in order to preserve its right to appeal the
district court’s decision. We therefore reverse the decision of
the court of appeals and remand this matter to the court of
appeals to consider whether the district court properly ruled
that Hanson owed Mr. Normandeau a duty of care.
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11 No. 20071006
¶26 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.